Robert L. Montgomery appeals from his convictions by a jury of
three counts of making a false writing contrary to K.S.A.
On June 15, 1988, Montgomery went to Jay Wolfe Honda in Kansas
City, Kansas, with the intention of purchasing a Honda
Accord, a Pontiac Trans Am, and a pickup. He planned to trade in
two cars and a pickup.
During the course of the negotiations, checks were filled out
for the Honda and for the Trans Am. A third check was signed but
not filled in. The third check was signed on June 15 but dated
The checks Montgomery executed were starter checks drawn on the
account of Martin Clark at the Jackson County State Bank of
Kansas City, Missouri. The checks did not have the name of the
account holder printed on them. Montgomery did not know Clark and
did not have permission to use the checks. The two completed
checks were signed by Montgomery with the notation "hold for 24
hours" below the signature line.
Edward McFadden, Jay Wolfe's sales manager, testified that
Montgomery left the two checks for the amount of the cars with
instructions to "run the check" if he did not have the cash as
Montgomery testified that he told McFadden he did not have cash
for the cars but would need to arrange financing. He intended to
trade in the pickup he was driving and to leave it at the lot so
the new vehicles would be held for him, but as he was cleaning
out the pickup, he discovered the starter checks. Montgomery said
McFadden suggested he leave checks rather than the pickup.
Montgomery said he told McFadden the checks were not his, but
Montgomery admitted agreeing to the plan.
There were numerous conversations, telephone calls, attempts to
obtain title to trade-ins, and other dealings between the parties
not material to the issue herein which resulted in Jay Wolfe
Honda reporting the Honda and Trans Am as stolen. The vehicles
were ultimately returned. Montgomery was charged with but
acquitted of two counts of felony theft, in addition to the three
counts of making a false writing, for which he was found guilty.
Montgomery appeals the denial of his motions for new trial and
judgment notwithstanding the verdict, and his application for
Montgomery raises several issues on appeal, but we will
consider only the one we deem controlling.
Montgomery was charged with making a false writing under K.S.A.
21-3711. Montgomery contends this is a general statute
and that he should have been charged under the more specific
statute of giving worthless checks in violation of K.S.A.
21-3707. We agree.
K.S.A. 21-3711 provides:
Making a false writing. Making a false writing is
making or drawing or causing to be made or drawn any
written instrument or entry in a book of account with
knowledge that such writing falsely states or
represents some material matter or is not what it
purports to be, and with intent to defraud or induce
"Making a false writing is a class D felony."
A "written instrument" is defined by K.S.A. 21-3110(25) as:
"any paper, document or other instrument containing
written or printed matter or the equivalent thereof,
used for the purposes of reciting, embodying,
conveying or recording information, and any money,
token, stamp, seal, badge, trademark, or other
evidence or symbol of value, right, privilege or